foreclosure proceedings by the mortgagee, and stating further that they had at last obtained all of the policies, and inclosed a statement showing earned and returned premiums under same, with a check for $4.37, the amount due. This letter was not received until after the fire, and the check was immediately returned.

We think the conclusion is irresistible that Hume, the treasurer of the plaintiff, well understood that the object of returning the policies to the insurance agents was for the purpose of cancellation; that the delivery of the policy in question by Ives to the local agents for cancellation and surrender was not only effective against the mortgagee, but the plaintiff as well. That it was so understood by Hume is apparent from the conversations in December testified to by Murphy, the accuracy of which is unchallenged, and the correspondence which passed between them. We think, upon the undisputed evidence, the trial court should have directed a verdict for the defendant.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event. All

concur.

DURKEE v. HUDSON VALLEY R. CO.

(Supreme Court, Appellate Division, Third Department. November 13, 1907.) MASTER AND SERVANT-DEATH OF SERVANT-NEGLIGENCE-CONTRIBUTORY NEGLIGENCE EVIDENCE.

In an action for death of a motorman by the bumper of another car overriding and crushing the vestibule of his car, evidence held to sustain a verdict finding defendant negligent in furnishing its employés cars with the bumpers constructed of different heights, and that intestate was not negligent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 962.]

Smith, P. J., and Sewell, J., dissenting.

Appeal from Trial Term, Washington County.

Action by Zadie Durkee, as administratrix, etc., against the Hudson Valley Railroad Company. From a judgment for plaintiff for the wrongful death of her intestate, and from an order denying defendant's motion for a new trial on the minutes, it appeals. Affirmed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

W. L. Kiley, for appellant.

Kellogg & Barker (J. A. Kellogg, for counsel), for respondent.

JOHN M. KELLOGG, J. The defendant's Troy car, north-bound, and its local car, south-bound, were to pass each other at a switch, the Troy car to keep the straight track, the local car to take the side track. Late at night the Troy car arrived at the switch ahead of the local car, and stood in part covering the point of the switch, so that it obstructed the passage of the local car on to the side track, and a head-on collision of the cars caused the death of the plaintiff's intestate. Placing the Troy car upon the entrance to the switch was the act of a fellow servant, and the liability of the defendant is not predicated upon that negligence.

and 140 New York State Reporter

The only question submitted to the jury as tending to show negligence of the defendant was the manner in which the bumpers, so called, upon the two cars were placed with reference to each other. The Troy car was a longer and higher car than the local car. The bumpers upon these cars formed the front sill of the car, and are an extension of the floor of the car beyond the vestibule. They were constructed of oak timbers six or eight inches in width, and bound with heavy iron. In case the two cars were pushed against each other, the bumpers would not meet, but those of the Troy car, on account of its greater height, would lap over those of the local car and strike against the vestibule. When the cars collided, the bumper of the Troy car passed entirely over that of the local car, and broke through and crushed the vestibule and controller stand at which the plaintiff's intestate, the motorman, was stationed, and killed him. The Troy car was uninjured. The fact that the bumpers were built of heavy oak timbers, and bound with iron, shows that such construction was intended to protect the car in case it ran against an obstruction. Did the defendant furnish suitable cars when they were so constructed that in case of coming together the bumper of the Troy car could serve no purpose except to break or demolish the local car? It was a fair question for the jury whether the defendant was not negligent in furnishing its employés cars so constructed. The conclusion of the jury that defendant was negligent in furnishing unsuitable cars, and that such negligence caused the death of the intestate, and that he was free from contributory negligence is fairly sustained by the evidence.

The judgment and order should therefore be affirmed, with costs. All concur, except SMITH, P. J., and SEWELL, J., who dissent.

KELLY v. BATTLE ISLAND PAPER CO.

(Supreme Court, Appellate Division, Fourth Department. November 20, 1907.) MASTER AND SERVANT-INJURIES TO SERVANT-MASTER'S LIABILITY.

Where a servant was injured by the fall of a platform supported by an acid tower which defendant was razing, and the fall was the direct result of the weakening of the tower by taking it down, defendant's liability could be predicated only on negligence in the conduct of the work, and not on a failure to provide a safe place under Employer's Liability Act, Laws 1902, p. 1748, c. 600, creating a liability for injuries to a servant resulting from defects in the master's work; the master not being bound to guard against dangers incident to the work of razing structures.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, $ 200, 207.]

Appeal from Trial Term, Oswego County.

Action by Daniel W. Kelly against the Battle Island Paper Company. From a judgment on the verdict in favor of plaintiff, and from an order denying defendant's motion for a new trial on the minutes, it appeals. Reversed on the law and the facts.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Mead, Stranahan & Guile and Irving G. Hubbs, for appellant.
Newell, Chapman & Newell, for respondent.

WILLIAMS, J. The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide event.

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The accident in which the injuries were received occurred in the taking down of an acid tower, 24 feet square and originally 125 feet high. At the time of the accident it had been taken down to about 75 feet from the ground. The plaintiff was employed as a laborer in the work. He fell from the tower, and one of his fingers was injured. The case was submitted to the jury under Employer's Liability Act, Laws 1902, p. 1748, c. 600. The court charged the jury that the tower and its surroundings might be considered as a part of the works of the defendant under the act. It was claimed that the injuries were the result of a defect in the condition of such works, which arose from, or had not been discovered or remedied owing to, the negligence of the defendant, or a person in its service intrusted with or exercising superintendence of the work. The court charged specifically that the defendant was obliged to furnish the plaintiff a reasonably safe place to perform his labor, and if it failed in this duty it was guilty of negligence, and if such negligence caused the accident and injuries there could be a recovery, so far as this branch of the case was concerned. There was more or less evidence relating to an iron rod, which it was claimed was, or should have been, in the frame to support the timbers that gave way, and the failure to have this rod there, or to have it properly secured, was the particular ground of negligence complained of. The tower was strong enough as it stood before the upper part of it was taken away, but it became weakened and insecure by reason of the removal of parts of it in the process of taking it down, until the floor on which plaintiff was working gave way and fell, causing the plaintiff's injuries. The plaintiff claimed there never was an iron rod in the frame, and for this reason the place was not reasonably safe to work in. The right to recover was made to depend, under the charge, upon the question whether the place was a reasonably safe one, by reason of the absence of the rod; it never having been put in, when the tower was constructed or afterwards. This theory of the submission of the case was duly excepted to, and its correctness challenged by various requests, refusals, and exceptions, at the close of the charge.

It seems to us the judgment and order cannot be sustained upon such a theory. We are not called upon to say whether a recovery might be sustained under the evidence because of negligence of the superintendent in failing to inspect the works as the taking down of the tower proceeded, and in discovering the danger and warning the plaintiff of such danger, and in providing against the same. The case was not submitted upon any such theory. No such question was left to the jury. Since the trial of this case the Court of Appeals has declared the law relating to questions here involved in Citrone v. O'Rourke Eng. Const. Co., 188 N. Y. 339, 80 N. E. 1092, and in that case the court said:

all the

"It is apparent from evidence in the case relating to the character of the work and the manner in which it was being conducted, that, whatever was the danger to which the men were exposed, it

106 N.Y.S.-47

and 140 New York State Reporter

was due to the manner in which the work was prosecuted. Under such cir cumstances the rule of law which makes it incumbent upon an employer to provide or maintain a safe place in which his employés are to do their work has no application. As was said by Mr. Justice Cullen in O'Connell v. Clark, 22 App. Div. 466, 48 N. Y. Supp. 74, the principle of a safe place does not apply, where the prosecution of the work itself makes the place and creates its danger. And the same judge held, in Stourbridge v. Brooklyn City R. R. Co., 9 App. Div. 129, 41 N. Y. Supp. 128, the rule that the master must provide a safe place for work only applies where the place and the work are not connected, where the work is not in the construction of the place, as in the case of a mill, a factory, mine, ship, well, etc."

In Thompson's Commentaries on the Law of Negligence, vol. 4, § 3979, it was said:

*

"The work of tearing down an old building is necessarily attended with danger, which arises in the progress of the work and which the master cannot anticipate and provide against. Therefore it has been held that the rule which makes it incumbent upon a master to provide his servants with a safe place within which to work does not apply to such situation. * In the destruction of a building, there is no attempt or obligation on the part of the master to make it secure; but, on the contrary, the work of removal is one in which in turn each part of the structure becomes insecure. every workman understands, and he must be governed accordingly.

This

The real question, if any, in this case, was not one of negligence in failing to furnish a safe place to work, but of negligence in the conduct of the work, and this latter question was not submitted to the jury. The floor that fell was perfectly safe until the supports were removed in the taking down of the tower. It had sustained the weight of tons of stone. It was unusually strong and secure before the supports were removed.

The judgment and order should be reversed upon the law and the facts.

Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

In re AMERICAN FIDELITY CO.

CLEMENT v. WHITE et al.

(Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) 1. EXECUTION-SUPPLEMENTARY PROCEEDINGS-RIGHT TO MAINTAIN.

The assignee of a judgment may resort to supplementary proceedings against the judgment debtor, as might the judgment creditor, but for the assignment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 1094.] 2. SAME-ORDER FOR EXAMINATION-SETTING ASIDE ON MOTION.

Where the surety on the bond of a saloon keeper has paid and taken an assignment of the judgment obtained against such keeper for breach of conditions of the bond, the order obtained by the assignee for examination of the judgment debtor in supplementary proceedings should not be set aside on motion, on the debtor's claim that the surety for a consideration agreed he should not be liable to it for any amount it should become chargeable with on account of the bond; the fact of the making of such agreement and of the authority of the surety's agent to making it being disputed, and there being a question of law whether the agreement,

if made, would not, under certain conditions, be vold as against public policy.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21, Execution, § 1114.] . Appeal from Erie County Court.

In the matter of the examination of William F. White, judgment debtor, in proceedings supplementary to execution, on the application of American Fidelity Company under a judgment rendered for plaintiff against said White, in an action by Maynard N. Clement, state commissioner of excise, against said White and the American Fidelity Company, and assigned to said company. From an order setting aside an order requiring said White to appear and be examined concerning his property (104 N. Y. Supp. 711), said American Fidelity Company appeals. Reversed and remanded.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Charles Newton, for appellant.

James Harmon, for respondent.

SPRING, J. In July, 1906, the state commissioner of excise recovered a judgment by default against the defendant White for penalties. for the breach of the conditions of a bond given by him in pursuance of the provisions of the liquor tax law. The defendant, the American Fidelity Company, was a surety on the bond; but no judgment was entered against it, although made a party defendant. It paid the amount of the judgment, and the same was assigned to it by the state commissioner of excise. An execution issued upon the judgment after the assignment was returned wholly unsatisfied, and the usual order in proceedings supplemental to execution was granted ex parte by the county judge of Erie county, where the judgment was entered, and where the judgment debtor resided. The order was subsequently vacated by the County Court upon the application of the judgment debtor. The judgment having been valid at the time it was transferred to the surety company, there must exist some cogent reason to justify the order appealed from. The commissioner of excise unquestionably might have pursued this remedy against the judgment debtor, and ordinarily whatever procedure is available to the judgment creditor to aid in collecting his judgment may also be taken advantage of by the assignee of the judgment. The defendant surety company is a foreign corporation, and was represented in Buffalo by local agents, and the transactions of the defendant White were with these agents. It is his claim that at the time the surety company gave the bond required by section 18 of the liquor tax law (Laws 1897, p. 221, c. 312) it entered into the following independent agreement with him:

"It is expressly understood and agreed that, if the bond applied for is issued by the American Fidelity Company, the applicant is not to be liable for any amount the said company may become chargeable with or may pay for or on account of such bond, and that the American Fidelity Company shall pay to applicant any amount the applicant may be compelled to pay for or on account of the bond."

He states in his affidavit that he paid $5 additional premium for this agreement indemnifying him against liability on his bond, and that